In the Matter of: Everett E. Powell II, Respondent.
Discipline Action Hearing Officer Robert W. York
Respondent Pro Se Everett E. Powell II Indianapolis, Indiana
Attorneys for the Indiana Supreme Court Disciplinary
Commission G. Michael Witte, Executive Director Angie L.
Ordway, Staff Attorney Indianapolis, Indiana
that Respondent, Everett Powell, committed attorney
misconduct by falsifying evidence and knowingly making false
statements to this Court and the Commission in an attempt to
be reinstated to the practice of law. For this misconduct, we
conclude that Respondent should be disbarred.
matter is before the Court on the report of the hearing
officer appointed by this Court to hear evidence on the
Indiana Supreme Court Disciplinary Commission's
"Verified Complaint for Disciplinary Action, " and
on the post-hearing briefing by the parties. Respondent's
2004 admission to this state's bar subjects him to this
Court's disciplinary jurisdiction. See Ind.
Const. art. 7, § 4.
Background and Facts
by another attorney, T.G. obtained a settlement of a personal
injury action. Because T.G. was in an abusive relationship
and had a history of drug and alcohol abuse, that attorney,
with T.G.'s consent, established a special needs trust in
2004 to hold the settlement proceeds and prevent rapid
depletion by T.G. and others who may not be acting in her
best interests. Later in 2004, T.G., accompanied by her
abusive partner, consulted Respondent about getting access to
the trust funds. Respondent agreed to take the case for a fee
of one-third of the trust corpus. After expending only
minimal work, Respondent became successor trustee and quickly
disbursed from the trust about $30, 000 to T.G. and about
$15, 000 to himself. For his conduct in collecting an
unreasonable fee, we suspended Respondent from the practice
of law for at least 120 days without automatic reinstatement,
effective November 11, 2011. Matter of Powell, 953
N.E.2d 1060 (Ind. 2011). Meanwhile, T.G.'s share was
quickly dissipated on drugs and expenditures to T.G.'s
partner and his family, an outcome the special needs trust
had been designed to avoid.
Respondent sought and was denied reinstatement. Those
proceedings included findings by a hearing
officer that Respondent had, among other things,
continued to practice law during his suspension, failed to
appropriately maintain his trust account, forged the
signatures of clients and another attorney, filed a false
affidavit with this Court, and misappropriated $5, 000 from
another client. The hearing officer also found that
Respondent had made no effort to make restitution to T.G.
despite the financial ability to do so.
three days after we issued our order denying reinstatement,
Respondent filed a second petition for reinstatement. Those
proceedings included findings by the hearing officer that
Respondent "has continued to engage in dishonesty,
including filing two subsequent false or misleading
affidavits with the Supreme Court, noticing a deposition
without a court reporter in order to circumvent the hearing
officer's mandate, filing bankruptcy, failure to pay
debts, yet retaining the use of the property for which the
debt was owed, filing meritless pleadings, engaging in
verbally aggressive attitude and behavior to advance his
position, [and] being evasive and lacking candor when
questioned during the hearing." Comm'n Ex. 4 at 41.
The hearing officer also found that Respondent still had made
no efforts toward restitution to T.G. other than "last
minute, token efforts, calculated to further his goal"
of being reinstated. Id. at 32. We denied
Respondent's second reinstatement petition by order
issued on March 6, 2014. In that order we identified several
concerns we had regarding Respondent's conduct during the
reinstatement process, one of which was that Respondent
"has only belatedly attempted to make even nominal
restitution to T.G." Comm'n Ex. 5 at 2. Respondent
then filed a "Request for Clarification, " which we
denied on July 11, 2014.
events that ensued form the basis for the Commission's
verified complaint in this matter. On July 21, 2014,
Respondent drove to Iowa to meet with T.G. at her workplace.
Respondent told T.G. he needed her to sign a document stating
that he had given her $15, 000, but informed T.G. that he had
only $1, 500 to give her. T.G. agreed to sign the document,
and Respondent assisted T.G. in executing, before a notary
public, a document he had prepared falsely stating that T.G.
had received $15, 000. Respondent then gave T.G. $1, 500.
Respondent told T.G. she would not get in trouble for signing
the document, but that if anyone from Indiana called her she
should not say anything.
soon talked with friends and acquaintances, realized she had
been taken advantage of, and contacted the Commission.
Meanwhile, on August 26, 2014, Respondent (acting pro
se) filed a third petition for reinstatement.
Simultaneously, Respondent sent a letter and updated
discovery to the Commission, falsely asserting in both that
he had made full restitution of $15, 000 and submitting the
false document to this effect that he had induced T.G. to
September 3, 2014, the Commission served its Notice of Trial
Deposition of T.G. as an out-of-state witness, scheduled for
September 20, 2014. About a week prior to that deposition,
Respondent twice called T.G., attempting to determine what
she had told the Commission. T.G. did not answer his
question. On September 15, 2014, Respondent (through his
newly-retained counsel) filed a motion to withdraw his third
reinstatement petition, in which he once again falsely
represented that he had paid T.G. the full $15, 000
restitution. The Commission nonetheless proceeded to take the
trial deposition of T.G. in order to secure her testimony.
Respondent's counsel indicated he did not object to the
deposition and elected not to attend.
Commission charged Respondent with violating Indiana
Professional Conduct Rules 3.3(a)(1), 3.4(b), and 8.4(c). At
the final hearing in this matter, T.G.'s videotaped
deposition was admitted over Respondent's objection.
Respondent made an unsworn opening statement challenging
T.G.'s credibility and claiming to have given her $15,
000 in cash, but he expressly declined to testify. The
hearing officer filed his report to this Court ...